Before Judges Keefe, Steinberg and Weissbard. On appeal from Superior Court of New Jersey, Law Division, Passaic County, 99-4-376-I.
The opinion of the court was delivered by: Steinberg, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 15, 2001
A Passaic County Grand Jury returned Indictment No. 99-4-376 charging defendant Antrell Murray, along with his co-defendant Laverna B. White, with third-degree unlawful possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10(a)(1) (Count One); third-degree distribution of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-5(b)(3) (Count Two); third- degree distribution of a controlled dangerous substance, cocaine, within 1,000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); and second-degree distribution of a controlled dangerous substance, cocaine, within 500 feet of a public housing facility, park, or building, N.J.S.A. 2C:35-7.1 (Count Four). Defendant was charged both as a principal and accomplice, pursuant to N.J.S.A. 2C:2-6.
A jury found defendant guilty on all four counts. Prior to imposing sentence, the judge merged counts one and two into counts three and four. He then sentenced defendant to seven years of imprisonment on count four, and a concurrent four-year term on count three, with three years of parole ineligibility. Finally, the judge imposed the appropriate monetary penalties, fees, assessments and driver's license revocation. Although we affirm defendant's convictions, we remand for resentencing.
According to the State's proofs, on September 29, 1998, Passaic Detectives William Paranto and Juan Clavijo were working with two Federal Drug Enforcement Administration (DEA) agents, Special Agent Barbara Devine, and Special Agent Robert Fenton. The Passaic Police Department had been working in concert with the DEA since July 1998 investigating street-level drug dealing in Passaic. The investigation ended in January 1999. Arrests were not made until the completion of the investigation so as not to jeopardize the undercover investigation.
On September 29, 1998, Clavijo and Paranto were working in one car, and Fenton and Devine were in another car. Both teams were working undercover, and Devine was fitted with a non-recording body microphone. At approximately 8:30 p.m., Devine and Fenton drove to the area of Oak Street and Myrtle Avenue, specifically to 75 Myrtle Avenue. Clavijo and Paranto also drove to that vicinity, but not the immediate area. According to Clavijo, the area of 75 Myrtle Avenue was "a known high intensity drug-trafficking area" within Passaic. It was also close to a school that was used for school purposes so as to implicate N.J.S.A. 2C:35-7, and the Passaic Municipal Park, thereby implicating N.J.S.A. 2C:35-7.1.
Upon reaching the targeted area, Devine exited the vehicle and crossed the street to reach 75 Myrtle Avenue, located in the middle of the block. Fenton remained in the car, parked at the corner of Oak Street and Myrtle Avenue, where he was able to watch Devine. According to Devine, as she walked to 75 Myrtle Avenue, she was approached by a heavy-set black male with a beard, who was later identified as White. He was wearing a white baseball cap, white long-sleeve shirt, and green pants. White asked Devine what and how much she wanted. She said "forty," referring to $40 worth of crack cocaine. White then went into the doorway of 75 Myrtle Avenue and moments later came out and gave Devine a piece of crack cocaine. In return, she gave $20 to White.
White then said he would be right back. He turned and went to another black male, described by Devine as tall and thin, who was wearing a horizontal multi-colored stripped shirt. Although not in her report, she stated this individual was also wearing a black zippered jacket, which was open. Passaic Police later told Devine the other individual was named Antrell Murray. She watched defendant reach into his jacket pocket, retrieve an object, and place the object into White's right hand. White then turned from defendant, came back to Devine, and gave her the object that had been placed in his right hand. In turn, she gave White an additional $20. The object was later determined to be crack cocaine. She said White entered into a white Pontiac Grand AM and left the area.
Devine proceeded to walk toward her undercover vehicle. As she walked, she provided a description of White as being involved in the transaction. Neither Clavijo nor Paranto had seen the transaction. However, Fenton was also able to identify the first male as a heavy-set black male driving a white Pontiac. He was unable to provide a description of the second male. Clavijo and Paranto then drove to Myrtle Avenue and observed a male fitting the description get into a white car which was parked on the corner of Oak Street and Myrtle Avenue. Paranto immediately recognized that person to be White, whom he had known "for many years."
Clavijo and Paranto drove around the corner and met Devine and Fenton at a pre-arranged location. Devine gave Clavijo the rock-like substance, and provided a description of both individuals, including the second individual who she described as a black male wearing a multi-colored shirt. Devine then entered the backseat of the undercover vehicle, and she, Clavijo, and Paranto proceeded to the area of 75 Myrtle Avenue to attempt to locate and identify the second individual.
As they approached 75 Myrtle Avenue, Devine observed defendant at the same location where the transaction had occurred. Defendant was wearing a multi-colored shirt. Devine pointed to him, identifying him as the person who gave White the crack cocaine. Paranto and Clavijo exited the car to conduct a street interview and identification check with defendant. Devine remained in the car. According to Devine, the detectives "faced" defendant towards her and he was approximately fifteen feet away. When the detectives returned to the vehicle, Devine told them that the person they had just spoken to was the same person who had handed crack cocaine to White. She described the area as "well-lit by a street lamp."
Defendant was not arrested until March 8, 1999, when he voluntarily surrendered at the police station after he found out that the Passaic Police were looking for him. At trial, defendant acknowledged that he went to a barber shop located at 75 Myrtle Avenue to get a hair cut on September 29, 1998, and was talking to his cousin Robin Banks, in front of her home at 73 Myrtle Avenue, when Clavijo and Paranto ...